Prediction: National Marriage Equality Within 9 Months

by Joshua A. Newville, Attorney on November 8, 2012Joshua A. Newville, Attorney

Prior to Tuesday, six states (New York, Massachusetts, Vermont, New Hampshire, Connecticut, Iowa) and the District of Columbia had full marriage equality.

As a result of Tuesday’s historic election, three additional states will now have marriage equality as well. Those states are Maine, Maryland, and Washington. (Technically, at the time of this post, Washington’s results are still coming in, but its referendum on the matter looks almost certain to pass.)

Another result of the election is that Minnesota defeated a hurtful and divisive amendment that would’ve constitutionally banned marriage equality. Since last night’s election also gave the DFL control of the Minnesota legislature, and since Governor Dayton is pro-marriage equality, it is almost certain that, despite initial words to the contrary, Minnesota is now on the fast-track to also establishing marriage equality.

The real question is whether Minnesota’s democratically-elected government will beat the United States Supreme Court to the punch.

Since Proposition 8 passed in California in November 2008, “Don’t Ask, Don’t Tell” has been repealed, the Executive Branch stopped defending DOMA, President Obama endorsed marriage equality, and the majority of the nation’s citizens now favor marriage equality. On top of all of that, Tuesday night, four out of four states decided in favor of marriage equality via popular vote. Prior to that, marriage equality lost at the ballot box 31 successive times. The momentum shift of the last four years has truly been stunning.

On November 20, the US Supreme Court will meet to decide whether it will review several marriage cases. The cases that deal with the Defense of Marriage Act (“DOMA”) address whether the law that stops the federal government from recognizing marriage equality is constitutional; the law also prevents any state from being required to recognize the marriage equality of couples married in another state. The “Prop 8″ case deals with the constitutionality of California’s 2008 anti-marriage equality amendment.

Given the overwhelming momentum shift of the past few years, I predict that the Supreme Court will decide to review these cases. The Court will make the announcement about whether it will review these cases by November 26th. Then, sometime in June or July of next year, I predict that the Court will find both Prop 8 and the Defense of Marriage Act unconstitutional. While I predicted this in May, I suspect that the additional momentum of last night will bump the overall SCOTUS vote on these issues beyond the 5-4 prediction I’ve previously stated.

I predict that the Court will declare Proposition 8 unconstitutional by, effectively, a 7-2 vote; I further predict that Anthony Kennedy will write the majority opinion, joined by Justices Ginsberg, Breyer, Sotomayor, and Kagan. I believe that Justice Kennedy will craft his opinion in such a way so as to strike down the 31 constitutional amendments and additional state laws that currently ban marriage equality across the United States; and, I suspect he’ll do so by applying heightened scrutiny to laws that discriminate based on sexual orientation. I also expect to see a concurring opinion by Justice Roberts (joined by Justice Alito) that would only strike down such state amendments in the case of California, and would only apply the rational basis test for laws addressing sexual orientation. I’m looking forward to a very entertaining dissenting opinion by Justice Scalia, joined by Justice Thomas.

I predict that the Court will find DOMA to be unconstitutional by a vote of at least 7-2. There is a much greater chance that Justices Scalia and/or Thomas would jump in on this matter, as it is fundamentally tied to issues of States’ rights. I wouldn’t be surprised to see Justice Kennedy also draft the majority opinion here, too. Depending on the level of scrutiny he applies, and depending on whether Justices Scalia and/or Thomas end up also throwing their weight against DOMA, the set of opinions for this matter could end up including a plethora of differing concurrences and/or dissents.

If these predictions pan out, the result will be marriage equality in every US state within 9 months.

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